An `Absurd` Rule Protects Us All

January 10, 1986|By Stephen Chapman.

``The criminal is to go free because the constable has blundered.`` That is how one Supreme Court justice caustically summarized the exclusionary rule, which forbids the courtroom use of evidence the police have obtained by illegal methods.

This hostile view is shared by President Reagan and his attorney general, Edwin Meese, who argue that the rule impedes law enforcement by depriving judges and juries of reliable evidence, without discouraging lawless police conduct. Early in his first term, Reagan denounced the rule as an ``absurd``

one that produces a ``grievous miscarriage of justice.`` His Justice Department later helped to persuade the Supreme Court to narrow its scope. Meese complains that the rule ``has never helped an innocent person. It only helps the guilty.``

But the critics` case has always lacked for evidence, beyond the rare publicized instance of a notorious criminal who goes free purely because the police failed to follow the rules for search and seizure. Prosecutors admit that in serious crimes, the rule seldom blocks convictions, mainly because the worse the crime, the more careful police are to respect the suspect`s rights

--lest they blow the chance of a conviction.

The evidence for the exclusionary rule, however, recently got strong support from a Tribune study of its effects in criminal cases here. ``Fewer than one percent of Chicago defendants accused of violent crimes have their cases thrown out because the evidence against them was illegally obtained,``

The rare application of the rule is bound to surprise even civil libertarians. The Tribune found that illegally obtained evidence is excluded in just one of every 200 violent crimes and one of every 500 property crimes. In many of these cases, the defendant is convicted anyway.

Only in drug cases does the exclusionary rule frequently affect the outcome--about 13 percent of the time. The reason isn`t hard to guess. Simple drug offenses involving possession or sale are among the hardest to detect. Why? Because, unlike rapes and robberies, they produce no victim who has knowledge of the crime and an interest in reporting it to the police.

So a lot of drug arrests are made by police who have conducted searches based on a mere hunch--searches violating the 4th Amendment, which means their fruits can`t be used in court. The difficulty of prosecuting these crimes is less an argument against the exclusionary rule than against our repressive drug laws.

But the critics` real objection is to the 4th Amendment guarantee against unreasonable searches and seizures. Abolishing the exclusionary rule would not make these searches constitutional.

That is what the critics neglect to mention. Notre Dame law professor G. Robert Blakey, for instance, insists that the rule inhibits the police in conducting searches--``an effect on the conduct of officers that we never see.`` What he is saying, in simpler terms, is that if illegally obtained evidence were admissible in court, the police would be more inclined to ignore the suspect`s constitutional rights.

If that is true--and it undoubtedly is--then Atty. Gen. Meese is wrong to insist that the exclusionary rule ``only helps the guilty.`` By forcing police to respect the guarantees provided by the 4th Amendment, it shields the innocent as well as the guilty from unconstitutional invasions of person and property. Meese, who not so long ago had to defend himself against a special prosecutor`s investigation, shouldn`t need to be told that the suspicions of the authorities are sometimes wrong.

The evidence demonstrates that the rule`s effects are just the opposite of those depicted by its critics: It does compel police to obey the commands of the Constitution, while presenting no significant barrier to vigorous law enforcement. It thus serves its purpose, which is to protect us all.